Henrik Josefsson*
Consult the genius of the place in all; That tells the waters to rise and fall …
Alexander Pope1 1. Introduction
This article analyses the establishment of spac- es of regulation of areas where the expanse of freshwater ecosystem is a dominant feature.
Under EU law the assessment and management of freshwater ecosystems are dominated by the Water Framework Directive2, however, other le- gal frameworks, such as the Habitats Directive,3 and the Liability Directive4 also provide fresh- water spaces of regulation.5 The purpose is to, first, examine if regulation of large-scale environ- mental problems, integrating multiple bodies of water, is compatible with the Water Framework Directive’s space of regulation that ‘body of wa-
1 Alexander Pope, Epistle to Burlington, lines 57–58.
2 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a frame- work for Community action in the field of water policy (Water Framework Directive).
3 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (Habitats Directive).
4 Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environ- mental damage (Liability Directive).
5 ‘Space of regulation’ is used as an overarching concept to converge the different legal schemes of geographical differentiation of both social places and ecosystems. The differentiation is a mean to operationalize the different environmental objectives of each directive geographi- cally.
Abstract
Implementing measures on a large scale, includ- ing multiple bodies of water and activities, is em- phasized as a prerequisite for achieving the Water Framework Directive’s objective of ‘good ecological status’. This article asks what kind of space of regu- lation is suitable for the ecological and hydrological systems and large-scale environmental problems of a river basin area. The conclusion is that the obliga- tion of ‘good ecological status’ is coupled to each body of water, not multiple ones, and not designed for large-scale environmental problems that in- clude multiple bodies of water. A larger-scale and management-adapted aquatic space of regulation is found in the Habitats Directive and the Liability Directive, since their space of regulation is more site-specific and adapted to environmental charac- teristics and problems of the legal space. A differen- tiation of spaces of regulation that facilitates man- agement of large-scale environmental problems of a sub-basin or river stretch is proposed.
* Ph.D. student, Faculty of Law, Uppsala University.
ter’ and the objective of ‘good ecological status’
actualizes. Secondly, the purpose is to examine if there exists alternative spaces of regulation or ecological spaces suitable for the management of large-scale environmental problems. Still, as the Water Framework Directive is the main legisla- tive act as regards water management, this essay orients itself towards the Directive throughout and analyses how well the different directives correlate when they overlap.
This essay first discusses the possibility of the Water Framework Directive’s unit of ‘body of water’, and objective of ‘good ecological status’
to include or interrelate multiple bodies of wa- ter and activities. Second, it exemplifies how the ecological space of a stream adjacent to a Natura 2000 area is perceived legally in the issuing of a hydropower permit. The third and fourth sec- tion provides an analysis and discusses different spaces of regulation, such as the Liability Direc- tive’s, the large-scale legal spaces of the Marine Strategy Directive6 and the Landscape Conven- tion7. An expanse of freshwater ecosystem may, ecologically, be differentiation through the use of units such as: community, population, ecosys- tem, lake, or river, for example. Section five in- troduces ecological reasoning discussing differ- ent ecological spaces for the assessment of river basin environmental problems, both with and without regard to the Water Framework Direc- tive. The final section discusses how an expanse of freshwater ecosystem may be differentiated, to facilitate spaces of regulation that incorporates large-scale environmental problems.
6 Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for Community action in the field of marine environmen- tal policy (The Marine Strategy).
7 Council of Europe, ‘European Landscape Convention, Florence. CETS No. 176 (Strasbourg: Council of Europe)’.
2. Aquatic Spaces of Regulation
Legal objectives such as the Water Framework Directive’s ‘good ecological status’ or the Habi- tats Directive’s ‘favourable conservation status’
are connected to the units of their respective Di- rectives. A ‘body of water’ is the unit to which
‘good ecological status’ applies (e.g. Art 2 (22), 4 (a)(ii)), and a ‘Natura 2000 area’ or a ‘species population’ within the European territory is the unit to which ‘favourable conservation status’
applies (e.g. Art. 3 and 1 (i)). When assessing the ‘favourable conservation status’ of a Natura 2000 area or a species population, the obligation may expand beyond of the unit to activities out- side of geographical area or follow the species requirements for self-maintaining, if an activity significantly affects the ‘favourable conservation status’ of the of the Habitats Directives spaces of regulation (Art. 1 (e)(i), Art. 6 (2)(3)).
The spatial expansion of the obligation of ‘fa- vourable conservation status’ is not possible, in relation to the Water Framework Directive’s unit
‘body of water’, as the entire river basin is differ- entiated into different types of bodies of water or management units, each having a type-specific objective with a type-specific reference point as- sociated with it (see Art. 4 (a)(ii), Annex V (1.2.) and Annex II (1.1.)(1.3.)). Another difference is that a Natura 2000 area may include waters that are not identified as ‘bodies of water’, since the Water Framework Directive applies to riv- ers, lakes, transitional waters, or coastal waters.
Waters that cannot be clearly classified, as any of these categories (e.g. the narrow neck between two lake types), is not directly integrated into the provisions of the Water Framework Direc- tive (see Annex II). Thus, the space of regulation of a body of water is not the same, ecologically or legally, as the legal space of a Natura 2000 area, and generates different obligations for the Mem- ber States.
The difference between the spaces of regu- lation is due to the variables that direct the dif- ferentiation of the legal units. In the Habitats Directive, geographic, abiotic, and biotic fea- tures distinguish aquatic areas, a differentiation of units that seems to follow the Convention on Biological Diversity8 and its definition of ‘ecosys- tem’ as a ‘dynamic complex of plant, animal and micro-organisms communities and their non- living environment interacting as a functional unit’ (Art. 2). In the Water Framework Directive, only abiotic parameters, in much more detail, are specified, to differentiate bodies of water from one another (see Annex II 1.2).
The following section discusses the suitabil- ity of the body of water as the space of regula- tions of ‘good ecological status’ when assessing and managing the ecological, and hydrological systems of an aquatic area, with regard to large- scale environmental problems.
2.1 The Water Framework Directive
In a recent Swedish official governmental re- port, the interconnectedness of a river basin was discussed from the perspective of implement- ing measures for multiple bodies of water and activities within a sub-basin or river section.9 The report suggested that it should be possible for the government or competent authorities to issue general administrative provisions that implement general measures with regard to substantial, well documented, and similar en- vironmental problems within a part of a river basin. Issuing this kind of provision is intended to breach permit rights and change the circum- stances of multiple, permitted activities within
8 Convention on Biological Diversity, United Nations 1992.
9 SOU 2013:69. Vattenverksamhetsutredningen, Ny Tid Ny Prövning: Förslag till Ändrade Vattenrättsliga Regler 305–312.
a sub-basin or river section, for example. It has been argued that this kind of provision is a pre- requisite for achieving the Water Framework Di- rective’s objective of ‘good ecological status’.10 The space of regulation would then be on a large scale (e.g. multiple bodies of water or sub-basin), potentially incorporating ecological, hydrologi- cal, and hydrogeological systems. However, such large-scale regulation highlights many complex legal and ecological questions, which the report leaves to the administrative authorities to sort out. One question not discussed in the report is fundamental: is this kind of large-scale regu- lation compatible with the Water Framework Directive’s space of regulation that ‘body of wa- ter’ and the objective of ‘good ecological status’
actualizes?
2.1.1 From River Basin to Body of Water
The obligation of ‘good ecological status’ is nota- ble for both its ecological and legal complexity.11 Part of the complexity is that the Water Frame- work Directive establishes an a priori typologi- cal system that differentiates the river basins into bodies of water (found primarily in Annex II).
The primary focus of the differentiation is to al- low for the assessment of biological and physico- chemical quality elements, and the way in which these are affected by human activity.
10 Daniel Hering and others, ‘Assessment and Recov- ery of European Water Bodies: Key Messages from the WISER Project’ (2013) 704 Hydrobiologia 1.
11 See for example Brian Moss, ‘The Water Framework Directive: Total Environment or Political Compromise?’
(2008) 400 Science of the Total Environment 32; Daniel Hering and others, ‘The European Water Framework Directive at the Age of 10: A Critical Review of the Achievements with Recommendations for the Future’
(2010) 408 Science of the Total Environment 4007; Henrik Josefsson and Lasse Baaner, ‘The Water Framework Di- rective – a Directive for the Twenty-First Century?’ (2011) 23 Journal of Environmental Law 463; Henrik Josefsson,
‘Achieving Ecological Objectives’ (2012) 1 Laws 39.
Throughout the EU, more than 127,000 bod- ies of surface water have been identified, approx- imately 82 % being rivers, 15 % lakes, and the remaining 3 %, coastal and transitional waters.12 The differentiation of bodies of water is a crucial step for obtaining a robust assessment and clas- sification systems under the Water Framework Directive.13 Establishing the body of water as the space of regulation for ‘good ecological status’, the Water Framework Directive specifies that the river basin should be differentiated into different types of bodies of water (system A). If a lake has a depth <3 m, 3 to 15 m, and >15 m, each area is designated as one of three types, and each type is compared to a type-specific ‘high ecological status’ lake reference point (Annex II 1.2.2.), for example. An alternative differentiation system (system B) complement the main differentiation method, but must achieve at least the same de- gree of differentiation as would be achieved us- ing system A, that is, ensure that type-specific biological reference conditions may be reliably derived (see Annex II 1.1. (iv), 1.2.). For rivers, as one example, the defining features for this dif- ferentiation include altitude, latitude, longitude, geology, and size. For heavily modified and arti- ficial bodies of water with the objective of ‘good ecological potential’, the lines drawn among types of bodies of water are based primarily on the changes in hydromorphological characteris- tics resulting from physical alternations caused by human activity, preventing the attainment of
‘good ecological status’ characteristics (see Art.
12 European Commission, ‘Commission Staff Working Document European Overview (1/2) Accompanying the Document Report From the Commission to the Europea Parliament and the Council on the Implementation of the Water Framework Directive (2000/60/EC) River Basin Management Plans’ 70.
13 Ibid 58.
4 (3 (a)) Annex II 1.1. (v) and Annex V 1.2.5.).14 For example, a dam affects the hydromorpho- logical characteristics of a body of water, owing to its physical alteration of the flow of the heavily modified body of water.
Even if the Water Framework Directive leaves the way in which its provisions are achieved to the discretion of Member States, the differentiation process is not optional, but a material, procedural part of the Directive. The differentiation constructs the body of water as the unit to which the Water Framework Direc- tive’s objectives apply, and therefore the dif- ferentiation of bodies of water is an important procedural element for achieving ‘good ecologi- cal status’. Each body of water is to be assessed and managed individually, as obligations such as non-deterioration and restoration are coupled to each body of water, and not multiple ones (e.g. see Art. 4 (1)(a)).15 This highlights that the achievement of a good status for the ecological organization of aquatic ecosystems, communi- ties, populations, and organisms is on the scale of a body of water, creating an impression that the river basin is a collection of separate bodies of water. In order to improve and maintain eco- logical status, this is how lawyers, governmental agencies, and the public are to frame the aquatic assemblage of different types of organisms and their abiotic environments.
The ecological assumption behind this dif- ferentiation of river basins is that biological com- munities in a type of body of water will deviate only slightly from the reference body of water and its biological communities, when they at-
14 See also ‘Common Implementation Strategy For The Water Framework Directive (2000/60/EC) Guidance Document No 2 Identification of Water Bodies’.
15 See also Lasse Baaner, ‘The Programme of Measures of the Water Framework Directive-More than Just a Formal Compliance Tool’ (2011) 8 Journal for European Environ- mental and Planning Law.
tain ‘good ecological status’ (see Annex V 1.2.).
This means that you compare and assess sites by assuming that one site has certain desired attri- butes/elements/conditions, which are then com- pared to those of another site with undesirable elements or conditions. This reasoning is used experimentally, for example, when two similar sites exist, and one is experimented on, to under- stand and predict how ecosystems may respond to the induced stressors. In management under the Water Framework Directive, the reasoning may be practical: if human stressors impact a stretch of a river, one compare this stretch to a similar reference stretch, and through manage- ment measures, try to alter the impacted stretch, to make it similar to the reference stretch.16 This may be of practical value, since a number of comparable bodies of water may be similarly as- sessed and managed.17
It should be kept in mind that the conditions for the previously mentioned practical manage- ment are the results of treating the river basin as consisting of multiple numbers of predefined elements, assessed and managed based on their similarities and differences, rather than site- specific characteristics. The ecological status of a body of water depends on how it resembles the units of the differentiation system of the Water Framework Directive, and not the site-specific structure of the ecological organization; instead, that status is assumed to follow from the struc- tural factors that direct their differentiation.
Thus, Annex II provides a grammar that, by a
16 Nikolai Friberg and others, ‘Biomonitoring of Human Impacts in Freshwater Ecosystems: The Good, the Bad and the Ugly’ (2011) Volume 44 Advances in Ecological Research 1.
17 Piet FM Verdonschot, ‘Evaluation of the Use of Water Framework Directive Typology Descriptors, Reference Sites and Spatial Scale in Macroinvertebrate Stream Ty- pology’ in Mike T Furse and others (eds), The Ecological Status of European Rivers: Evaluation and Intercalibration of Assessment Methods (Springer Netherlands 2006).
priori variables, determines how ecological spac- es in EU river basins are alike, without assessing their individual attributes.18
As many biotic and abiotic site-specific inter- actions are fundaments to the ecosystem status of a stream or a lake framing the ecological orga- nization of the river basin in this way, assessment and management under the Water Framework Directive differs from an assessment and man- agement focused on the status of ecosystems.19 The following sections attempt to address this divergence between the ecological space of an ecosystem and the space of regulation that the body of water actualize.
2.1.2 Managing Multiple Bodies of Water Under the Water Framework Directive – General Administrative Provisions
The idea behind a general administrative provi- sion is quite simple: if multiple permitted activi- ties considerably affect the ecological status of a river section and deteriorate the river section in a similar manner, then instead of reviewing each permit, a general measure could be implemented that allows for the ecological status of the river section to increase. The legal and ecological ac- tuality of the river section is not necessarily so simple. Within a larger area with multiple activi- ties, the bodies of water may be of different types, and each unit may carry different type-specific obligations that must be taken into account.
Furthermore, the obligation of ‘good ecological status’ does not allow interim ecological losses within one body of water to be compensated by restoration or enhancement measures at another
18 This analysis was inspired by Michel Foucault, The Order of Things : An Archaeology of the Human Sciences (Pantheon Books 1971) 136–137, 144–145.
19 Guy Woodward, ‘Biodiversity, Ecosystem Functioning and Food Webs in Fresh Waters: Assembling the Jigsaw Puzzle’ (2009) 54 Freshwater Biology 2171; Friberg and others (n 16).
body of water, and Member States must prevent deterioration, and protect, enhance, and restore each body of water simultaneously (although the time frame for achieving the objectives may dif- fer)(Art. 4 (1)(a)(i)(ii)(iii) and 4 (4)).
A general administrative provision aimed at changing ecological conditions of multiple bod- ies of water must ensure that the measure both prevents deterioration and simultaneously im- prove the ecological status of all bodies of water within a sub-basin, for example. Since the risk of ecological deterioration cannot be circumvented, owing to the site-specific ecological, legal, and technical complexity of each sub-basin or river section, an ecosystem focused administrative provision for multiple bodies of water must also correspond to the deterioration exemptions found in the Water Framework Directive. Con- sulting the exemptions is necessary as there can be no guarantee that management measures, as new modification of the physical characteristics of bodies of water (such as water flow or tem- perature), do not result in deterioration within the targeted or adjacent bodies of water.20 There- fore, any provision affecting multiple bodies of water must clearly demonstrate that it is for the benefit of the environment and society in the ab- sence of significant, better environmental options (it has to be a more suitable regulative instru- ment than separate reviews of each permitted activity), while all practicable steps are taken to mitigate any risk of adverse impact on any body of water (Art. 4 (7)(a)(c)(d)). This problem has been discussed by some Member States (e.g. the
20 For example, see Christian Feld and others, ‘From Natural to Degraded Rivers and Back Again: A Test of Restoration Ecology Theory and Practice’ (2011) 44 Advances In Ecological Research 119; Scott A Stranko, Robert H Hilderbrand and Margaret A Palmer, ‘Compar- ing the Fish and Benthic Macroinvertebrate Diversity of Restored Urban Streams to Reference Streams’ (2012) 20 Restoration Ecology 747.
Nether lands and Denmark), and in the Nether- lands, deterioration of one specific body of wa- ter may be compensated for by improvements to another body of water, or the river basin district as a whole.21
Ecologically, implementing general environ- mental measures as a legal method for the large- scale management of hydrological connectivity between multiple bodies of water, for example, is probably needed, if the status of the ecological organization of river sections, sub-basins, or river basins is to improve. However, a precautionary approach is needed, owing to the lack of knowl- edge of the large-scale rehabilitation of aquatic ecosystems.22 Also questionable is whether large- scale measures are compatible with the way in which the Water Framework Directive couples the obligations of the Directive to the ‘body of water’ unit. Since the consequences for each body of water cannot be envisaged, in the imple- mentation of management measures that change the physical characteristics of bodies of water, it must be clearly demonstrated that there is no better legal option available for the achievement of ‘good ecological status’ for each body of water affected, corresponding to the Water Framework Directive’s exceptions for new modification of bodies of water (Art. 4 (7)(d)).
The more comprehensive management that a general administrative provision is intended to provide is appropriate in intent, but the Wa- ter Framework Directive’s space of regulation is not differentiated for the purpose of managing bodies of water together, since the obligations of
‘good ecological status’ and non-deterioration are tied to each body of water, and not to the mul- tiple bodies of water that constitute a sub-basin,
21 See Andrea Keessen and others, ‘European River Basin Districts: Are They Swimming in the Same Implementa- tion Pool?’ (2010) 22 Journal of Environmental Law 197.
22 Feld and others (n 20).
for example.23 As one of the dominant features of aquatic ecosystems is hydrological connectivity among various parts of a sub-basin, this conclu- sion may be surprising. However, the hydro- morphological quality elements are not part of the definition of ‘good ecological status’, but are defined only for ‘high ecological status’ bodies of water, and when establishing reference points, or defining a body of water as heavily modified (as a possible reference for hydromorphologi- cal characteristics) (see Art. 4 (3) and Annex V 1.1. 1.2.). The bodies of water are differentiated to allow for the assessment of the biological and physico-chemical quality elements, and not hy- drological connectivity (see Annex V 1.2.). This means that, just because a differentiated river ba- sin corresponds to the stipulated differentiation, and may facilitate the assessment of the quality elements, the space of regulation may still fail to provide a basis for appropriate management measures (as a general administrative provision) and assessment of hydrological or food web con- nectivity. Therefore, the space of regulation that a body of water provides may not coordinate the ecological, hydrological, and hydrogeologi- cal systems of the river basin (recital 33) without side-stepping the material, procedural part of the Water Framework Directive that the differentia- tion of bodies of water is.
There are alternatives for adapting the gen- eral administrative provision to the body of water construct, if there is a similar causality between multiple activities and a correspond- ing unsatisfactory body of water status. Each activity could be required to be investigated by
23 It is important to see that there is a difference between the assessment and the management obligation, as moni- toring points may be selected based on the magnitude and impact of hydromorphological pressures as a whole, for example, and could include multiple bodies of water, whereas the environmental objectives apply to bodies of waters individually.
the operator of the activity and reported to the competent authority, regarding how the activ- ity might be adapted to increase the status of the body of water in question. The authorities could then assess the suggestions, and obligate the op- erators to realize the necessary measures. With this approach, measures would address a gen- eral environmental problem while being coupled to the body of water of each activity, and clearly be a better regulative option, in comparison to separate permit reviews of each activity.
How the differentiations of spaces of regu- lation may differ will now be demonstrated through a case study, which demonstrates three assessment and management spaces: the Habi- tats Directive’s, the Swedish Environmental Court of Appeal’s, and the Water Framework Directive’s.
2.2 The Swedish Stream, Ljungån
When a court or administrative authority consid- ers the review or issuing of a permit the assess- ment is often tied to the place of the activity (even if alternative locations and indirect effects need to be considered in accordance with the Environ- mental Impact Assessment Directive24 (Annex IV (2) (5))). That the differentiation of the space of regulation is difficult has been demonstrated in Swedish case law regarding Natura 2000 areas on several occasions, and an aquatic example (and not an example of court practise) is that of the hydropower development of Ljungån. Ljungån was an unregulated stream located just outside the Natura 2000 area of Gimån.
24 Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment Text with EEA relevance.
Gimån is a Natura 2000 area with several species and habitats of EU conservation value, such as Fennoscandian natural rivers (3210), oligotrophic to mesotrophic standing waters (3130), hard oli- go-mesotrophic waters with benthic vegetation (3140), water courses of plain to montane levels (3260), Cottus gobio (European bullhead), and Lutra lutra (European otter). Ljungån is a tribu- tary of the Natura 2000 area, and connects to the Gimån area through the regulated lake Holms- jön, which is part of the Natura 2000 area.26 The Holmsjö area is characterized by dead riparian zones that make it difficult for organisms to find food in the lake, and tributaries, such as Ljungån, is an important part of the food web of the lake and the Natura 2000 area.27 In the conservation
25 Map extracted from VISS database, http://www.viss.
lansstyrelsen.se, 2014-06-23.
26 Länsstyrelsen Jämtlands Län, ‘Bevarandeplan För Na- tura 2000-Område Gimån SE0720294’.
27 Ibid.
plan for the Natura 2000 area, Ljungån is de- scribed as an important link in maintaining the conservation status of the Natura 2000 areas, and has many indicators of ecological value, such as bottom fauna of national conservation interest, and food web interaction from species such as Salmo trutta (salmon), Lutra lutra (otter), and Thy- mallus thymallus (grayling), which connect the food web of the Natura 2000 area to Ljungån. The otter is found in the Habitats Directive Annex IV, and specified as in need of strict protection.
For the otter population of the Natura 2000 area, Ljungån appear to provide a space that supports the population’s capacity to maintain itself (one of three criteria’s for ‘favourable conservation status’, see Art. 1 (i)) with regard to the Natura 2000 area, especially with respect to the regu- lated lake section of the area. Both the Natura 2000 area and the otter had excellent status in the conservation plan, before exploitation. However, it is emphasized in the conservation plan that
Figure 1. The Natura 2000 area of Gimån; the highlighted area is the Natura 2000 area.25
this status depends on the current hydrological- ecological network of tributaries that function ecologically.28 That is, even if Ljungån is outside the protected area, the conservation values of the Natura 2000 area depend on the ecosystem func- tions of tributaries outside of the Natura 2000 area, of which Ljungån is indicated as the most important.
In 2004, the Swedish Environmental Court of Appeal permitted a new hydropower station and dam in the lower part of Ljungån, disrupt- ing the hydrological and food web connection between the Natura 2000 area and the upstream section of Ljungån. Different administrative or- ganizations, such as the National Conservation Agency and the County board considered that a new hydropower station and dam would sig- nificantly impact the conservation values of the Natura 2000 area, regardless of measures, such as the construction of a small artificial tributary.
The court disagreed, and considered the mea- sure sufficient to permit the hydropower station and dam, as habitats of EU conservation value are not directly affected by the exploitation, and only some species, principally the otter, are per- ceived as affected by the exploitation.29 Since the exploitation affects the hydrological-ecological network that supports the otter’s ability to main- tain itself, and thereby affects its favourable con- servation status by disturbing the species (Art.
12 (1)(b)), the decision may be criticized for a questionable assessment of the ecosystem inter-
28 Ibid.
29 In Swedish: “Den särskilt utpekade art inom Natura 2000-området som oavsett områdets utbredning skulle kunna påverkas av en utbyggnad av Ljungån är utter.
Vidare kan vissa angivna skyddsvärda livsmiljöer, där karaktärsarter utgörs av öring och harr, påverkas. Med de skyddsåtgärder som enligt nedan bör föreskrivas för verksamheten finner Miljööverdomstolen att det förelig- ger förutsättningar att bevilja tillstånd till verksamheten enligt 7 kap. 28 b § miljöbalken.” See Mark- och Miljö- överdomstolen, ‘Ljungån M 6581-05’.
relations and dependencies between Gimån and Ljungån, foremost with regard to the otter.30 In other court decisions it has been emphasized that it is the comprehensiveness of habitat types and species that together should be assessed when determine if an activity will provide a deteriora- tion of a Natura 2000 area.31 But primarily, the differentiation of the Natura 2000 area may be criticized, as the space of regulation differs from the ecological space of Gimån. Because even if Article 4 specifies that, for aquatic species that range over wide areas, sites should be proposed that represent the physical and biological factors essential to the species’ life cycle, Ljungån is not included in the Natura 2000 area. It would seem that in differentiating the Natura 2000 area, the specified habitat types were considered, and not the otter.
Above, the differences between the space of regulation of a Natura 2000 area and a body of water were discussed. In the implementation of the Water Framework Directive, the stream, Ljungån, was differentiated into two bodies of water, and each of its four watercourse tributar- ies was differentiated from Ljungån into uni- form, isolated bodies of water (classification presented in figure two). The lake downstream from Ljungån, is differentiated into two bodies of water: upstream (Drogsjön), the body of water is classified as being of ‘moderate ecological sta- tus’, and downstream (Holmsjön), ‘with moder- ate ecological potential’. The entire Natura 2000 area of Gimån is differentiated into 47 bodies of water, tributaries not included.32
30 See also Henrik Josefsson, Natura 2000: en rättsfalls- analys (2008), D Master thesis.
31 MÖD 2004:68 ‘Hägerums Kvarn II’.
32 Information extracted from
http://www.viss.lansstyrelsen.se, 2014-06-23.
As discussed above, the Water Framework Di- rective is not constructed to assess and manage the site-specific hydrological-ecological intercon- nectedness between a stream and a lake, since the obligation of ‘good ecological status’ is cou- pled to the type-specific body of water. On the other hand, the Habitats Directive can provide an aquatic differentiation that may include hy- drological-ecological interconnectedness, if this is part of the requirements of protected species, for example, even if this was not the case with Gimån.
Here, we have two different ecological per- spectives that, based on habitat types, and spe- cies requirements or water quality, give rise to
33 Map extracted from VISS database, http://www.viss.lansstyrelsen.se, 2014-06-23.
two different differentiation approaches with dif- ferent spaces of regulation, as a consequence. If a conflict occurs between the objectives of ‘good ecological status’ and ‘favourable conservation status’, the Commission in general favours ‘good ecological status’, and the body of water as the space of regulation.34 This interpretation is based on Article 4 (2) of the Water Framework Direc- tive, which stipulates that the more stringent objective applies.35 Whether the Commission is
34 European Commission, Links between the Water Framework Directive (WFD 2000/60/EC) and Nature Di- rectives (Birds Directive 2009/147/EC and Habitats Direc- tive 92/43/EEC).
35 Another provision of the Directive, with regard to the Habitats Directive, is to create a register of protected ar- eas within the river basin district, and include measures required by the Habitats Directive in the plans of mea- sure (see Art. 6 and Annex VI (Part A)).
Figure 2. Ljungån, the Natura 2000 area; Gimån is highlighted.33
correct, and ‘good ecological status’ is in general more stringent for every site with overlapping spaces of regulation remains to be seen, and may become a question for the Court of Justice to consider, as the Commission behaviour cre- ates a legitimate expectation that this is the inter- pretation that the Commission will apply in its assessment of Member State implementation.36 As there are significant differences between the spaces of regulation the Commissions position can be controversial, as the small-scale space of a body of water seems contradictory to elements found in the Habitats Directive.
However, the Water Framework Directive and the Habitats Directive are not alone in regu- lating aquatic ecological elements; through its conceptualization of water degradation, the Li- ability Directive also provide a aquatic space of regulation. We next consider the similarities and differences between the Water Framework Direc- tive and the Liability Directive’s units.
2.3 The Liability Directive – Water Degradation
The main objective of the Liability Directive is to prevent and remedy damage to the environment.
Here, ‘environment’ indicates protected species and natural habitats, in keeping with the Habitats Directive (‘nature’), water (defined in accordance with the Water Framework Directive), and land (soil) (Art. 2 (12)). ‘Damage to the environment’
means a measurable, adverse change in a natural resource (means protected species and natural habitats, water and land (Art. 2 (12)), or measur- able impairment of a natural resource service that may occur directly or indirectly (Art. 2 (2)).
‘Services and natural resource services’ refer to the functions performed by a natural resource
36 See C-181/91 and C-248/91 Parliament v Council / Parlia- ment v Commission [1993] ECR I-3713 para 12–14; C-137/92 Commission v BASF [1994] ECR I-2629 para 50.
for the benefit of another natural resource or the public (Art. 2 (13)). ‘Water damage’ refer to sig- nificant adverse effects on the ecological, chemi- cal, and/or quantitative status and/or ecological potential of body of water (Art. 2 (1)(b) and Water Framework Directive Art. 2 (21), Annex V (1.1.) (1.2.)). ‘Damage’ means a measurable adverse status change in the ecological status, for exam- ple, of a body/bodies of water, which also can be assessed through measurable impairments of a natural resource service (Art. 2 (2)(12)). Service, here, refer to the activity of organisms or com- munities that result in functions that are ben- eficial for other natural resources or the public (Art. 2 (13)).
In principle, the liable party is the ‘operator’
who carries out an ‘occupational activity’. There is a strict liability (without fault) for environ- mental damage for certain dangerous activities, which are listed in Annex III, and include water abstraction and impoundment of water subject to prior authorization, in pursuance of the Water Framework Directive’s objectives (Annex III (6)).
Operators carrying out other occupational activi- ties are liable for any fault-based damage they cause to protected species and habitats. Opera- tors are under an obligation to remedy environ- mental damage once it has occurred, and to bear the costs of the ‘polluter’. If the operator fails to do so, or is not identifiable, the competent au- thority may step in and carry out the necessary preventative or remedial measures (Art. 6 (2)(3)).
For damage affecting water, protected spe- cies, and natural habitats (land will not be dis- cussed here), the aim is to restore the environ- ment to its undamaged/pre-damage state (Art. 2 (14), Annex II (1.1.1)) when damage from a listed (Annex III) activity have occurred or if other oc- cupational activities damage protected species or habitats (Art. 3 (1(a)(b)). Damage remediation is achieved through measures intended to restore the baseline conditions by means of primary,
complementary, and compensatory remediation (Art. 2 (11), (15) and Annex II). The damaged nat- ural resource or impaired services must achieve baseline conditions or be replaced by identical, similar, or equivalent natural resources or ser- vices at the site of the incident, or at an alterna- tive site (Annex II 1.1.2).
The Liability Directive’s system for achiev- ing baseline conditions complements the Water Framework Directive, not only by specifying that all practicable measures should be used to recov- er a damaged body of water to its status prior to the damage (see Water Framework Directive Art. 4 (6)(d)), but also has a system for how this should be done, and specifies how remediation should be conducted when recovery is not possi- ble, or will take a substantial amount of time. The Liability Directive is unique in that it specifies techniques for remediating an area not achieving baseline conditions, termed ‘habitat equivalency analysis’ (HEA) and ‘resource equivalency analy- sis’ (REA) (see Annex II). If natural recovery is not possible, remedial measures should be em- ployed to rehabilitate or replace damaged natu- ral resources and/or impaired services, or pro- vide an equivalent alternative to those resources or services (Art. 2 (10)). When determining the scale of complementary and compensatory re- medial measures, the use of resource-to-resource or service-to-service equivalence approaches are considered first. With these approaches, actions that provide natural resources and/or services of the same type, quality, and quantity as those damaged are considered first. Where this is not possible, alternative natural resources and/or ser- vices must be provided. For example, a reduction in quality might be offset by an increase in the quantity of remedial measures (Annex II 1.2.2.).
Complementary and compensatory remedial measures should be so designed that they pro- vide for additional natural resources and/or ser- vices, to reflect the time required for measures to
take effect; for example, the longer the period of time before the baseline condition is reached, the greater the number of compensatory remedial measures that will be undertaken (see Annex II 1.2.3.). The Liability Directive is intended to cre- ate a space of regulation that is site-specific, with the main objective of preventing and remedying damage where it has occurred, or if necessary, at an alternative site. This offers a flexible unit, where measures may be implemented outside the damaged area, if necessary.
If one or more bodies of water are dam- aged, and neither primary nor complementary measures can remediate them, or compensate for the damage during recovery, compensatory remediation at another site than the damaged area would be implemented, to compensate for the damage. This may be compared to the Water Framework Directive, where water degradation results in the obligation to prevent further de- terioration, and take all practicable measures to remediate the effects to the body of water, and not an alternative body of water (see e.g. Art. 4 (6)(a)(c)(d)).
Even if the baseline for damage/temporary deterioration of bodies of water is the same, ac- cording to the Water Framework Directive and the Liability Directive, regarding restoration of the environment to its undamaged state, they differ in the remediation measures and the desig- nated space of regulation. According to the Wa- ter Framework Directive, the body of water must be restored; for the Liability Directive, the space of regulation is the damaged area, and if interim losses occur, complementary and/or compensa- tory remedial measures must be implemented even if this falls outside the damaged body of water. This creates a larger and more flexible space of regulation than the Water Framework Directive’s body of water. This enlargement of the space of regulation by the compensatory ob- ligation is not possible under the ordinary man-
agement of the Water Framework Directive, or if only the Directive is invoked in the remediation damage/temporary deterioration.
The Liability Directive provides the option of implementing measures where needed, if water degradation occurs. Remediation of wa- ter degradation may be transferred throughout the river basin and not be bound to the dam- aged body/bodies of water, through the obliga- tions stated in the Liability Directive. However, such practice does not correspond to the Water Framework Directive’s differentiation system, which places obligations within the boundaries of each body of water. Thus, the space for reme- diating water degradation, and also damage to habitats and species protected by the Habitats Directive, is different than the space of regulation that is intended to provide for ‘good ecological status’. The obligations may conflict, as interim ecological losses in one body of water cannot be compensated at another body of water during recovery, according to the Water Framework Directive. For compensatory remediation to be compatible with the Water Framework Directive, exceptions to the Directive must be considered as it provide a new modification of a body/bodies of water, such as no significantly better environ- mental option being available (see Art. 4 (7)(a) (c)(d)).
2.4 Alternative Legal and Ecological Perspectives
The Water Framework Directive has a rather small-scale space of regulation, and in compari- son, the Habitats Directive may offer a larger space, although the scale depends on the habi- tats and species designated as protected, and the Liability Directive’s space depends on the damage and the possibilities for remediating the damage. None of the Directives is explicitly large-scale, however there are other spaces of regulation that are large-scale, without being ex-
plicitly focused on freshwater ecosystems. Two such units are the Marine Strategies’ ‘marine regions’ and ‘sub-regions’, and the Landscape Conventions’ ‘landscapes’. To compare the le- gal perspectives that specify the scale on which ecosystems should be managed, this section also exemplifies how different ecological views on effective differentiation of river basin ecosystems is discussed from an ecological perspective.
2.4.1 The Marine Strategy Directive
Both the Marine Strategy and the Maritime Spa- tial Planning Directive37 use marine regions or sub-regions as the units to which their objectives apply. Although the Maritime Spatial Planning Directive appears to be the main focus, with its spatial attention, it bases its initial differentia- tion of units on the Marine Strategies’ construct of ‘marine region’, and does not have a scheme of differentiation that complement or diverges from the Marine Strategy (see Art. 3). Therefore, we analyse only the Marine Strategies’ spatial constructs of ‘marine region’ and ‘sub-region’.
The differentiation of region and sub-region facilitates the implementation of the directive, and the differentiation should be considering hydrological, oceanographic, and biogeograph- ic features (Art. 3 (2)). The units of ‘marine re- gion’ and ‘sub-region’ are defined as the units to which the objective of ‘good environmental status’ applies (Art. 3 (5)). However, as Member States share regions and sub-regions, a certain differentiation based on each Member State’s zone of sovereignty (e.g. delimited by each Mem- ber State’s economic zone) adapts the predefined units to Member States’ conditions of sovereign- ty (see Art. 4). The entire Baltic Sea compromises
37 Directive 2014/89/EU of the European Parliament and of the Council of 23 July 2014 establishing a framework for maritime spatial planning.
one region, but the obligation of achieving ‘good environmental status’ for Sweden applies only to the Swedish part of the Baltic Sea. Even if the Member States that share the Baltic Sea Region must take into account the fact that each Member State’s segment is part of the region of the Baltic Sea as a whole, and cooperate and coordinate ac- tivities, ‘good environmental status’ applies to each Member State’s portion of the larger region (see Art. 3(9), 4, 5, and 6).
Since the ecosystem approach is integrated into ‘good environmental status’, and the ob- jective is intended to allow marine ecosystems to function fully and maintain their resilience to human induced environmental change, the Marine Strategy establishes a space of regula- tion that contrasts with the Water Framework Directive’s small-scale, body of water construct (see Art. 4 (5)). A potential difficulty in assess- ing and managing ecosystems within a Member State’s part of a region or sub-region is that the unit includes multiple ecosystems and all marine waters within this area, and in achieving ‘good environmental status’, the objective is intended to represent the diversity of all constituent eco- systems (see e.g. Art. 13 (4)).
2.4.2 The Landscape Convention
Another large-scale space of regulation is the
‘landscape’ construct found in the Landscape Convention. In comparison to both the Water Framework Directive and the Marine Strategy, the Landscape Convention differs fundamentally in its scheme of differentiation of landscapes, as it does not use any predefined elements to con- struct the landscape unit. The Convention’s defi- nition of ‘landscape’ may include land, inland water, and marine areas (Art. 2)), and is differ- entiated based on the interaction of natural and human elements, and how these elements are perceived by people (Art. 1 (a)). The differentia- tion is open to what people perceive as landscape
units, a differential process based on landscape democracy.38
As the interaction between natural and hu- man elements changes continuously, the land- scape as unit is intended to be an evolving entity, where human-created elements in the landscape should be assessed and managed together with more natural elements, and not necessarily sepa- rated.39 For example, by including both heavily modified and natural bodies of water within the same water landscape, the intention is for assess- ment, management, and planning to address the entire landscape, and avoid dividing it into a number of component elements. The landscape unit should not be composed of its constituent parts, or be the sum of its parts, but be a whole, qualitative, space of regulation.40
Ideally, the public concerned differentiates landscapes from one another; in practice, this is probably accomplished by experts in conjunction with local inhabitants, and the actual differenti- ated landscape may become both a large-scale and a small-scale unit, depending on what the public concerned identifies and recognizes as a landscape. Hypothetically, this could lead to a heterogeneous mass of units that fit neither ad- ministrative units nor the biophysical outline of an area particularly well. At the same time, the legitimacy of management authorities could also increase, if the space of regulation somewhat follows what the eye of the observer considers logical or given.41 Differentiating a lake into three
38 Council of Europe, ‘European Landscape Conven- tion, Florence, Explanatory Report, Strasbourg: Council of Europe. CETS No. 176’.
39 Ibid.
40 Council of Europe, ‘Recommendation CM/Rec(2008)3 of the Committee of Ministers to Member States on the Guidelines for the Implementation of the European Landscape Convention’.
41 For example, see Barbara A Cosens, ‘Legitimacy, Adaptation, and Resilience in Ecosystem Management’
(2013) 18 Ecology & Society.
bodies of water as the lake varies in depth (<3 m, 3 to 15 m and >15 m), in accordance with the Wa- ter Framework Directive, may not seem logical to the public concerned. Or, if a lake has a narrow neck somewhere that results in two bodies of wa- ter, classifying one as ‘heavily modified’, but not the other, since the heavily modifying activity is located in one of the bodies of water, although the environmental stress is the same, is not nec- essarily logical either. The Marine Strategies’
marine regions or sub-regions may also seem illogical: for example, traditionally, in Sweden the Baltic Sea has been differentiated into two larger areas, the Gulf of Bothnia and the actual Baltic Sea, differentiated by the Åland islands.
As the environmental problems in the two areas also differ – in general, pollution in the north, and organic pollution in the south – including them both in the same space of regulation could seem illogical to the public concerned.
The landscape construct may be criticized as lacking in definition, and, as its differentia- tion is facilitated by public views, it may result in units that fail to incorporate the biophysical out- line or relevant environmental problems. On the other hand, a priori schemes of differentiation are not necessarily better adapted to site-specific environmental problems, such as both the Water Framework Directive and the Marine Strategy suggest.
2.4.3 Aquatic Spaces of Regulation – Ecological Perspectives
Parameters relevant to typology are among the major sources of uncertainty in ecological as- sessment.42 A differentiated unit may be a com- munity, population, or ecosystem, if the focus is mostly abiotic or biotic. The differentiation may also be established by using other differentiation
42 See Hering and others (n 11).
variables, such as geographical (e.g. lake, stream or river section) or administrative elements (e.g.
county board or municipal), if this better fits the research questions and objectives.43 The units of an ecosystem may also intersect other units, such as the administrative area of county board to study how the management authorities con- nect management actions to ecosystems; biotic elements may then be compared to the human- scale management of a landscape, for example.
With regard to the Water Framework Direc- tive, there have been suggestions from the natu- ral sciences for how the differentiation of units could be developed, either towards simplicity, aiming for manageability, or more sophisticated systems that are better adapted to addressing aquatic ecosystems.44 A recurring, critical view is that a priori typological differentiation, with its broad categories of map-derived variables, fails to recognize the site-specific aspects of a river basin or body of water,45 or, that typologi- cal river basin differentiation is a questionable method for describing how a river basin is af- fected or unaffected by establishing reference points in different ecological environments.46 It is argued that instead of a priori judgements, more site-specific ecological aspects, such as the composition of river basin materials on which or- ganisms are dependent, makes more sense, and
43 Jianguo (Jingle) Wu, ‘Landscape Ecology’ in Rik Lee- mans (ed), Ecological Systems (Springer New York 2013).
44 For example, see Brian Moss and others, ‘The De- termination of Ecological Status in Shallow Lakes – a Tested System (ECOFRAME) for Implementation of the European Water Framework Directive’ (2003) 13 Aquatic Conservation: Marine and Freshwater Ecosystems 507;
Hering and others (n 11).
45 Hering and others (n 11).
46 Thomas R Whittier and others, ‘Selecting Reference Sites for Stream Biological Assessments: Best Profession- al Judgment or Objective Criteria’ (2007) 26 Journal of the North American Benthological Society 349; Friberg and others (n 21).
